Defending the Surveillance programs

Most of the discussion on this blog about the government’s program to monitor phone calls and the internet has been against it. But some pundits, politicians, and security experts are defending the surveillance.

After the jump, I have excerpts from two journalists who defend the programs. The conservative Charles Lane argues that, despite Rand Paul’s plans to file a lawsuit against the surveillance programs, they are, in fact, constitutional and legal. The liberal Richard Cohen argues that the surveillance isn’t all that bad. Safeguards are built in, and, besides, we have already given up our privacy every time we log onto Google and other online sites.

Do these arguments change your mind? If not, how would you answer them?

A few months ago the Supreme Court threw out a lawsuit by lawyers, journalists and human rights activists seeking to strike down the 2008 amendments to the Foreign Intelligence Surveillance Act, under which the NSA conducts data-collection programs — including, we now know, PRISM. These plaintiffs called the NSA’s activities a “dragnet,” much as Paul likens them to one of King George III’s general warrants.

In a 5 to 4 decision, the justices dismissed the complaint as “a speculative chain of possibilities.” The plaintiffs in that case, Clapper v. Amnesty International, were protesting surveillance of potential conversations with people overseas, whereas Paul says his focus is all-American communications. That might make a difference — but at a minimum, this brand-new precedent cuts against Paul.

Nor do things look promising on substance. The government needs a court-issued warrant, based on probable cause, to listen in on phone calls. Consistent with that, the 2008 FISA amendments say that the government has to get a warrant if it wants to query one of its digital databases and examine the content of an American communication.

But since the 1979 ruling in Smith v. Maryland it has been well settled that the government does not need a warrant to look at phone records — information about, say, the duration and direction of calls that companies routinely gather from their customers, who therefore have no reasonable expectation of privacy.

To the extent that the NSA is gathering only “metadata” about people’s phone calls and their activities on social media, Smith v. Maryland is on the government’s side.

True, the FISA court works in secret — not ideal for a purist civil libertarian. But remember that the court was established as a remedy for the unchecked executive-branch snooping of the 1960s and 1970s, and that it was further empowered under the 2008 amendments to remedy perceived excesses of the George W. Bush administration.

Metadata and private content travel together on the Internet, so it’s technically easy to look at the latter after accumulating the former. But the 2008 statute requires the government to take steps — known as “minimization” — to limit warrantless access to private data.

In the past week, it’s been raining stories about what the busybody government has been up to. The National Security Agency has been monitoring telephone calls and e-mails — and even social media stuff of the sort you shouldn’t have been doing anyway. To this, a whole lot of people have expressed shock. Oaths to the Fourth Amendment have filled the air. Unreasonable searches are simply unconstitutional, they assert — without asserting that anything has in fact been searched or seized. It has merely been noted and, if suspicious, referred to a court for the appropriate warrant.

The programs certainly can be abused. (So can local police powers.) But oddly enough, proof that this has not happened comes from the self-proclaimed martyr for our civil liberties, Edward Snowden, late of Booz Allen Hamilton, the government contractor that ever-so-recently employed him. (I assume he’ll be summoned to HR.)

In a remarkably overwrought interview conducted by the vainglorious Glenn Greenwald of the Guardian, Snowden cited not one example of the programs being abused. . . .

Greenwald likens Snowden to Daniel Ellsberg, who revealed the Pentagon Papers to The Post and the New York Times more than four decades ago. Not quite. The Pentagon Papers proved that a succession of U.S. presidents had lied about their intentions regarding Vietnam — Lyndon Johnson above all. In 1964, he had campaigned against Barry Goldwater for the presidency as virtually the peace candidate while actually planning to widen the war. As the Times put it in a 1996 story, the Pentagon Papers “demonstrated, among other things, that the Johnson administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance.”

In contrast, no one lied about the various programs disclosed last week. They were secret, yes, but members of Congress were informed — and they approved. Safeguards were built in. If, for instance, the omniscient computers picked up a pattern of phone calls from Mr. X to Suspected Terrorist Y, the government had to go to court to find out what was said. The Foreign Intelligence Surveillance Act established a court consisting of 11 rotating federal judges. These judges are the same ones who rule on warrants the government seeks in domestic criminal cases. If we trust them for that, why would we not trust them for other things as well?

Whenever I see “Hello, Richard” on my computer screen, I realize what’s happened: It knows me. It knows what I bought and when I bought it and where I was at the time. It knows my sizes and my credit card number, and if it knows all that, it knows pretty much everything. I long ago sacrificed a measure of privacy for convenience. One click will do it.

I also made the same sort of deal for security. I assumed the government was doing at least what Google was doing — and Google, I’m convinced, is the new Santa Claus: It sees you when you’re sleeping, it knows when you’re awake. It knows when you’ve been bad or good, so be good for goodness’ sake. In 2009, Google’s Eric Schmidt put us all at ease by telling CNBC’s Maria Bartiromo, “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.” See, not all billionaires are so smart.

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.